COUNTY OF FRONTENAC integrity commissioner, RONALD R. PRICE
REPORT TO COUNCIL PURSUANT TO PARAGRAPH 11.5 OF THE COUNTY OF FRONTENAC CODE OF CONDUCT
Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.
This Report relates to a Complaint to the Integrity Commissioner under the Frontenac County Code of Conduct by Michelle L. Foxton, President of the Hartington Community Association on January 9, 2017, naming Mayor Vandewall and Councillor McDougal as Respondents. The Documents in support of the Complaint are the following:
- Code of Conduct Com plaint Form dated January 9, 2017;
- Affidavit of Ian Flett sworn the 5th day of December, 2016; and
- Correspondence to the County of Frontenac and to the Township of South Frontenac from Eric K. Gillespie, Professional Corporation, Counsel for Hartington Community Association - for purposes of the details of the Complaint, a letter dated December 6, 2016.
The second and third of the above are incorporated by reference into the first. All three are included as Appendices to this Report, as Appendix 2, Appendix 3 and Appendix 4 respectively.
As explained in the Report, I declined to proceed with the Investigation on the following grounds:- that some matters made the subject of Complaint are, under paragraph 9.1 of the Code of Conduct, not within the jurisdiction of the Integrity Commissioner; and with regard to the rest, my determination pursuant to paragraph 12.1 of the Code of Conduct, that "there are ...insufficient grounds for an inquiry".
My tentative conclusions as outlined in the preceding paragraph were communicated in detail to Counsel for the Complainant affording him two weeks to provide a response or additional information and submissions before I reached a final decision. These were sent by email on January 23rd, and followed up by Courier for delivery on January 30th A further email was sent on January 30th indicating a proposed debate by which a response would be expected. These documents are appended as Appendix 6 and Appendix 7 hereto.
No response was received. Having received no response, I proceeded to confirm these conclusions.
I received the documentation relating to the Complaint from the County of Frontenac on Friday, January I3th. The process requires that I come to my best early understanding of the Complaint and related issues in order that I can make the informed first-stage decisions that para. 10 (and also para. 12 - see below) of the Code require of me - appreciating that a more complete and considered appreciation of these must await submissions by the Parties and such further work as may be required under para. 11 in regard to an "investigation". I made the first start on this on January 13th.
In the letter from the County forwarding the Complaint documentation, I was informed that the Solicitor for the County was preparing a Report on the matter, and that this was to be put before Council on January 18th. In the circumstances, it was my view that I had best put a hold on my work until the Report was accepted and its contents known. The Report was formally adopted by Council on January 18th. It is entitled "Legal Opinion - Township Participation in County Meetings". This document appears as Appendix 5 to this Report.
I note here the matters in that Report that I consider relevant to the decisions that I have been required to make:-
- As l interpret it, "there have been no in camera meetings ... [of the Frontenac County Council] ... with respect to the Hartingdon Application";
- Under the Municipal Act 2001, the Ontario Court of Appeal has indicated the importance of "ensuring that the interests of lower-tier municipalities are represented on upper-tier municipal councils";
- It follows, as the implicit interpretation of the authorities, that "elected representatives from lower tier municipalities are not and should not be precluded from participating in the decisions of the upper tier Council simply because the same issue is under consideration"; and
- Again as the implicit interpretation of the authorities, Members of upper-tier Councils are not required to vote in accordance with the position of the lower tier Council on a given issue.
I noted previously that I had concluded that some matters of complaint are not within the jurisdiction of the Integrity Commissioner. Specifically, under the Code, a Complaint can be brought only against a Councillor. See para. 9.1. The matters listed in the complaint documentation include a number, not brought against Councillors, but against or in relation to the County. These can be found in paragraphs 2, 3, 4 and 6 on page 2 of Mr. Gillespie's letter of December 6th l so advised Mr. Gillespie of this and informed him that I could not proceed on any of these matters of complaint.
This Report can most efficiently proceed next by replicating and incorporating here three paragraphs from my final communication to Mr. Gillespie informing him of my conclusions and repeating again my reasons for them. This is a letter dated February 7, 2017, included in this Report as Appendix 1.
'For the rest, the Complaint itemizes points of legal characterization of issues, specifically:- breach of confidentiality; breach of solicitor-client privilege; breach of common interest privilege; breaches of fiduciary duties; conflict of interest. Specific details of the various breaches by the Councillors are not provided. This invites assessment in terms of para. 9.3 as to whether this meets the expectation for the Code - a determination that I do not have to make. The legal headings are described by words such as "a reasonable perception and apprehension of ' and "potential and/or actual breaches". The required 'facts' in support are essentially contextual (see further below). Also there is a reference to "specific breaches of the ... County's Code of Conduct" without identification of particulars.
With regard to my responsibility for "Initial Classification" (para. 10), I have concluded that all of these listed in the preceding paragraph are within the jurisdiction of the Integrity Commissioner. The claim of conflict of interest is evidently not of a monetary. . . [substitute 'pecuniary'] . . .nature so as to require that it be dealt with under the Municipal Conflict of Interest Act.
While the Frontenac County Code of Conduct requires that the Commissioner 'shall investigate'' a Complaint (para 1 1 .1), this is also subject to another stated condition - with reference to para. 12.1, unless the Integrity Commissioner is of the opinion "that there are no grounds or insufficient grounds for an inquiry". For reasons that I communicated ... in earlier correspondence, and that are further set out below, I have concluded that this is such a case as it relates to those aspects of the Complaint that are within my jurisdiction.'
With regard to this set of issues, the Complainant appears to have been proceeding on the assumption - at least the hope -that Mayor Vandewall and Councillor McDougal had been participating in 'in camera' meetings of the Frontenac County Council. His letter states:- "It is our understand .. . [sic] ...that with respect to the Hartington subdivision and the associated Ontario Municipal Board (OMB) proceedings, the Mayor and the Councillor have been and continue to attend both Township and County in camera sessions notwithstanding these organizations having directly opposing interests .. .". That there was an implied concession that there might have been some doubt in their minds about this assertion, see para. 6 on page 2 of his letter. In any event, it has become clear- and, at the least, left unchallenged - that there were no in camera proceedings of the Frontenac County Council.
It is not necessary to come to any conclusion as to whether as Integrity Commissioner I might have come to a different conclusion had there been any in camera proceedings in the Frontenac County Council. The evidence and analysis can only proceed on the determination that there were no in camera proceedings. In the result, I regard this as so weakening the Claim brought against Mayor Vandewall and Councillor McDougal as to leave me only with the reasonable judgment that I could not safely proceed with the investigation.
Again, I set out my analysis of the issues in my letter (Appendix 1) to Mr. Gillespie. Again, for convenience, I replicate and incorporate the relevant paragraphs below from that letter:-
"My tentative conclusions -and absent a response, now my final conclusions - were as set out for you in my email of January 23rd as follows:-
'Mr. Flett specifies in his Affidavit that the Complaint is for "breach of confidentiality". I take it from your letter of December 6, 2016, that the Complaint presupposes that the matter arises in a context where both Councils had been conducting "in camera" meetings. It now appears that there were no in camera meetings being conducted by the Frontenac County Council on this matter at all. I n my view, whatever the situation may be in regard to the Township Council, there is no adequate factual basis shown for a Complaint of breach of confidentiality arising out of County of Frontenac open Council meetings. It would, on my view, require more of an evidentiary showing. Absent more - and subject to further argument - it would be my conclusion that "there are ... insufficient grounds for an inquiry" on the issue (para. 12.1).
In your letter of December 6th, you also suggest "a reasonable perception and apprehension of a breach of solicitor-client privilege" - addressed as well in the Affidavit. For the same reason as outlined above - it is my view that it would require more of an evidentiary showing to ask the two subjects of the Complaint to respond to the Complaint as formulated. Again, it would be my conclusion that "there are insufficient grounds for an inquiry".
In your letter you also assert that "there is a reasonable perception and apprehension of a breach of common interest privilege". This issue seems to me to be potentially more complex. It is not clear to me that this could readily follow simply by participation at an open Council meeting. That said, it is not for me, I think, to work through the case law on common interest or litigation privilege in order to form a preliminary judgment of the kind that I am now required to make. There is in your material no elaboration of how such a breach would occur. Tentatively, I am treating this in the same way as I have the issues in the preceding two paragraphs.
Your letter also states that there are "concerns regarding potential and/or actual breaches of fiduciary duties". Mr. Flett cites Section 3.3 of the County Code. Once again no specifics are provided about what potential breaches might become an issue. For example one can hypothesize a situation where a Councillor attending an in camera hearing of one Council might potentially have a fiduciary duty to disclose information from that context where it ls subject to observance of confidentiality in the other Council not meeting in camera. However, it is not apparent to me without hearing more that the reverse situation could give rise to a breach of fiduciary duty under the Code of Conduct of the Council where it was disclosed. Without more in the way of elaboration, it is my judgment at this stage that I should come to the same conclusion on this issue as I did on the previous three.
That appears to leave unaddressed only a Complaint about a potential or possible perception of conflict of Interest. Section 3.4 of the County Code is cited in Mr. Flett's Affidavit. It is also referred to in para 2, page 2 of your letter. On this issue, I take you back to items 2 - 4 of the listing from the "Legal Opinion" adopted as a Repo1t by the Frontenac County Council on January 1 8th. lf the Legal Opinion is correct, it raises the question for me as to how readily a general Claim of Conflict of Interest may be supportable without a more factually elaborated showing of specific aspects of conflict of interest or potential conflict of interest going beyond just attendance and voting at the separate Council proceedings. It would not be for me to speculate here whether different considerations might apply in a Complaint pursuant to the County's Code of Conduct.'
Again, therefore, my preliminary judgment is that I should conclude that "there are ... insufficient grounds for an inquiry" (para. 12.1)".
I conclude this my Report with the conclusion indicated in the preceding pages, with elaboration of reasons, that any farther investigation of the Complaint should not proceed, and that the matter is closed.